Health Insurance Commission (Reform and Separation of Functions) Act 1997

No. 159, 1997

Compilation No. 13

Compilation date:                              23 August 2017

Includes amendments up to:            Act No. 92, 2017

Registered:                                         4 September 2017

 

About this compilation

This compilation

This is a compilation of the Health Insurance Commission (Reform and Separation of Functions) Act 1997 that shows the text of the law as amended and in force on 23 August 2017 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

  

  

  

Contents

Part 1—Preliminary                                                                                                             1

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 1

Part 2—Transitional provisions relating to the transfer of Medibank Private from the Health Insurance Commission to a separate organisation (the nominated company)          3

Division 1—Introduction                                                                                            3

3............ Simplified outline................................................................................ 3

4............ Definitions.......................................................................................... 3

5............ Nominated company........................................................................... 5

6............ Fund‑transfer day................................................................................ 5

7............ Commission‑owned company............................................................. 6

8............ Crown to be bound............................................................................. 6

9............ External Territories.............................................................................. 6

10.......... Extra‑territorial operation.................................................................... 6

Division 2—Provisions relating to the period when the nominated company is Commission‑owned    7

11.......... Commission to hold shares in the nominated company....................... 7

12.......... Nominated company must seek registration as a registered health benefits organisation          8

13.......... Activities of the nominated company.................................................. 8

14.......... Commission may provide services or facilities to the nominated company              9

Division 3—Commission to facilitate transfer of Medibank Private to the nominated company            10

15.......... Commission to facilitate transfer of Medibank Private to the nominated company   10

Division 4—Transfer of Medibank Private from the Commission to the nominated company                11

Subdivision A—Transfer of Medibank Private fund                                      11

16.......... Transfer of Medibank Private fund to the nominated company......... 11

Subdivision B—Transfers of assets, contracts and liabilities                       12

17.......... Transfer of assets.............................................................................. 12

18.......... Transfer of contractual rights and obligations................................... 13

19.......... Transfer of liabilities......................................................................... 15

20.......... Commission contracts may be split................................................... 16

Subdivision C—Transfer of staff                                                                         17

21.......... Transfer of staff from the Commission............................................. 17

22.......... Terms and conditions—transferred employees................................. 18

23.......... Accrued benefits—transferred employees......................................... 19

24.......... Continuity of service of transferred employees................................. 19

25.......... Termination payments—transferred employees................................ 19

26.......... Variation of terms and conditions—transferred employees............... 19

27.......... Mobility rights—transferred employees............................................ 20

28.......... Re‑transfer of staff from the nominated company............................. 20

29.......... Terms and conditions—re‑transferred employees............................. 21

30.......... Accrued benefits—re‑transferred employees.................................... 22

31.......... Continuity of service of re‑transferred employees............................. 22

32.......... Termination payments—re‑transferred employees............................ 22

33.......... Variation of terms and conditions—re‑transferred employees.......... 22

Division 5—Acquisition by the Commonwealth of shares in the nominated company  24

34.......... Acquisition by the Commonwealth of shares in the nominated company 24

Division 6—Exemption from stamp duty                                                         26

36.......... Exemption from stamp duty.............................................................. 26

Division 7—Miscellaneous                                                                                       27

37.......... Transfers of land may be registered.................................................. 27

38.......... This Part does not modify registers kept by land registration officials 27

39.......... Application of Lands Acquisition Act............................................... 27

40.......... Instruments under this Part not legislative instruments..................... 28

41.......... Transfer of pending proceedings....................................................... 28

42.......... Operation of this Part does not place a person in breach of contract etc.  28

43.......... Transfer of records............................................................................ 29

44.......... Nominated company not to be an agency of the Commonwealth etc. 29

46.......... Compensation—constitutional safety‑net.......................................... 30

47.......... Delegation......................................................................................... 30

48.......... Commonwealth records.................................................................... 31

49.......... Complaints and investigations under the Ombudsman Act 1976...... 32

50.......... Requests under the Freedom of Information Act 1982...................... 33

51.......... Complaints and investigations under the Privacy Act 1988............... 34

52.......... This Part does not authorise the imposition of taxation..................... 35

53.......... Regulations....................................................................................... 35

Endnotes                                                                                                                                    36

Endnote 1—About the endnotes                                                                            36

Endnote 2—Abbreviation key                                                                                38

Endnote 3—Legislation history                                                                             39

Endnote 4—Amendment history                                                                           42

 

An Act to amend the Health Insurance Commission Act 1973, to enact transitional provisions relating to the transfer of Medibank Private from the Health Insurance Commission to a separate organisation, and for other purposes

Part 1—Preliminary

  

1  Short title

                   This Act may be cited as the Health Insurance Commission (Reform and Separation of Functions) Act 1997.

2  Commencement

             (1)  Subject to this section, this Act commences on the day on which it receives the Royal Assent.

             (2)  Subject to subsection (3), Part 2 of Schedule 1 to this Act commences on the fund‑transfer day.

             (3)  If Schedule 2 to the Audit (Transitional and Miscellaneous) Amendment Act 1997 does not commence before the fund‑transfer day:

                     (a)  the amendments of section 9A of the Health Insurance Commission Act 1973; and

                     (b)  the repeals of section 35 and paragraphs 42(a), (b) and (c) of the Health Insurance Commission Act 1973;

made by this Act commence immediately after the commencement of Schedule 2 to the Audit (Transitional and Miscellaneous) Amendment Act 1997.

             (4)  Part 3 of Schedule 1 to this Act commences at the end of the period of 5 years beginning on the day on which this Act receives the Royal Assent.

             (5)  In this section:

fund‑transfer day has the same meaning as in Part 2 of this Act.

Part 2—Transitional provisions relating to the transfer of Medibank Private from the Health Insurance Commission to a separate organisation (the nominated company)

Division 1—Introduction

3  Simplified outline

                   The following is a simplified outline of this Part:

4  Definitions

                   In this Part, unless the contrary intention appears:

asset means:

                     (a)  any legal or equitable estate or interest in real or personal property, whether actual, contingent or prospective; and

                     (b)  any right, power, privilege or immunity, whether actual, contingent or prospective.

Chairperson, in relation to the Commission, has the same meaning as in the Health Insurance Commission Act 1973.

Commission means the Health Insurance Commission.

Commission‑owned, in relation to a company, has the meaning given by section 7.

contract includes:

                     (a)  a deed; and

                     (b)  a deed poll.

contributor, in relation to a health benefits fund, has the same meaning as in the National Health Act 1953.

dependant, in relation to a contributor to a health benefits fund, has the same meaning as in the National Health Act 1953.

employee includes apprentice.

fund‑transfer day has the meaning given by section 6.

instrument includes a document.

land registration official, in relation to land, means the Registrar of Titles or other proper officer of the State or Territory in which the land is situated.

liability means any liability, duty or obligation, whether actual, contingent or prospective.

Medibank Private functions, in relation to the Commission, means the functions that were conferred on the Commission by Part IIA of the Health Insurance Commission Act 1973 as in force before the fund‑transfer day.

Medibank Private fund means the health benefits fund conducted by the Commission.

nominated company has the meaning given by section 5.

re‑transfer time, in relation to an employee, has the meaning given by section 28.

re‑transferred employee means a person whose employment is transferred in accordance with a declaration under section 28.

transfer time, in relation to an employee, has the meaning given by section 21.

transferred employee means a person whose employment is transferred in accordance with a declaration under section 21.

voting shares has the same meaning as in the Corporations Act 2001.

5  Nominated company

             (1)  The Minister may, by writing, declare that a specified company is the nominated company for the purposes of this Part.

             (2)  At the time when the declaration is made, the company must:

                     (a)  be incorporated under the Corporations Act 2001; and

                     (b)  have a share capital; and

                     (c)  be Commission‑owned.

             (3)  The declaration has effect accordingly.

             (4)  A copy of the declaration is to be published in the Gazette within 14 days after the making of the declaration.

6  Fund‑transfer day

             (1)  The Minister may, by writing, determine that a specified day is the fund‑transfer day for the purposes of this Part.

             (2)  The day must:

                     (a)  be after the commencement of this section; and

                     (b)  be a day when the nominated company is registered as a registered health benefits organisation under the National Health Act 1953.

             (3)  The determination has effect accordingly.

             (4)  A copy of a determination under subsection (1) is to be published in the Gazette within 14 days after the making of the determination.

7  Commission‑owned company

                   For the purposes of this Part, a company is Commission‑owned at a particular time if, and only if, all the shares in the company are legally and beneficially owned by the Commission at that time.

8  Crown to be bound

                   This Part binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.

9  External Territories

                   This Part extends to all the external Territories.

10  Extra‑territorial operation

                   This Part extends to acts, omissions, matters and things outside Australia, whether or not in a foreign country.

Division 2—Provisions relating to the period when the nominated company is Commission‑owned

11  Commission to hold shares in the nominated company

             (1)  The functions of the Commission include holding shares in the nominated company.

Note:          This subsection has effect subject to subsection (5).

             (2)  The Commission must not transfer any of its shares in the nominated company.

Note:          This subsection has effect subject to subsection (5).

             (3)  Neither the Commission nor the nominated company is allowed to do anything to cause or contribute to either of the following results:

                     (a)  that the Commission no longer holds all the shares in the nominated company;

                     (b)  that the Commission no longer controls the exercise of the total voting rights attached to the voting shares in the nominated company.

Note:          This subsection has effect subject to subsection (5).

             (4)  The following are examples of things that could give rise to a breach of subsection (3):

                     (a)  the issue by the nominated company of shares in the nominated company to a person other than the Commission;

                     (b)  the Commission agreeing to:

                              (i)  hold shares in the nominated company on trust for another person; or

                             (ii)  exercise voting rights attached to voting shares in the nominated company in accordance with the directions, instructions or wishes of another person.

Note:          This subsection has effect subject to subsection (5).

             (5)  Subsections (1), (2), (3) and (4) cease to have effect immediately before the time specified in a declaration under subsection 34(2) (which deals with the transfer of the shares from the Commission to the Commonwealth).

12  Nominated company must seek registration as a registered health benefits organisation

             (1)  This section applies to the nominated company if the company is Commission‑owned.

             (2)  The nominated company must take all steps that are open to it to obtain registration as a registered health benefits organisation under the National Health Act 1953.

             (3)  Section 73BAB of the National Health Act 1953 does not apply to the nominated company before the time when the company begins to conduct the Medibank Private fund following the transfer referred to in section 16. Before that time, the nominated company must not conduct any health benefits fund.

13  Activities of the nominated company

             (1)  This section applies to the nominated company if the company is Commission‑owned.

             (2)  Section 86 of the Public Governance, Performance and Accountability Act 2013 (which deals with subsidiaries of corporate Commonwealth entities) does not apply to the nominated company.

             (3)  The activities that may be carried on by the nominated company are not limited by reference to the functions and powers conferred on the Commission.

             (4)  In determining the range of activities that may be carried on by the nominated company, it is to be assumed that all the shares in the company were beneficially owned by the Commonwealth instead of the Commission.

Note:          This means that the nominated company can carry on any activity that falls within the legislative powers of the Parliament.

14  Commission may provide services or facilities to the nominated company

             (1)  The Commission’s functions include the provision, on request, of services or facilities, where:

                     (a)  the services or facilities are provided to the nominated company on a cost‑recovery basis; and

                     (b)  the services or facilities are provided to the nominated company under an agreement or arrangement; and

                     (c)  the agreement or arrangement was entered into when the nominated company was Commission‑owned; and

                     (d)  the provision of the services or facilities relates to an activity that can lawfully be carried on by the nominated company.

             (2)  Subsection (1) does not limit section 8 of the Health Insurance Commission Act 1973 (which deals with the provision of services or facilities on a commercial basis).

Division 3—Commission to facilitate transfer of Medibank Private to the nominated company

15  Commission to facilitate transfer of Medibank Private to the nominated company

                   The functions of the Commission include:

                     (a)  facilitating the transfer from the Commission to the nominated company of the Medibank Private fund; and

                     (b)  assisting the nominated company, the Commonwealth and other persons in connection with:

                              (i)  the implementation of this Part; and

                             (ii)  preparatory work associated with the implementation of this Part.

Division 4—Transfer of Medibank Private from the Commission to the nominated company

Subdivision A—Transfer of Medibank Private fund

16  Transfer of Medibank Private fund to the nominated company

             (1)  The Minister may, by writing, formulate a scheme for the transfer of the Medibank Private fund, and the business of that fund, to the nominated company.

             (2)  The scheme must provide that the transfer will occur on the fund‑transfer day.

             (3)  The scheme must provide that the transfer does not affect the continuity of a person’s status as a contributor to the fund.

             (4)  The scheme must require the nominated company to adopt the rules in force under section 8A of the Health Insurance Commission Act 1973 immediately before the fund‑transfer day, subject to such modifications (if any) as are set out in the scheme. However, this subsection does not prevent the rules from being varied by the nominated company after the fund‑transfer day.

             (5)  The scheme may contain such ancillary or incidental provisions as the Minister considers appropriate.

             (6)  The scheme must set out outlines of any declarations, contracts or other arrangements:

                     (a)  under which the proposed transfer is to be carried out; or

                     (b)  that are otherwise necessary to give effect to the scheme.

             (7)  The scheme has effect accordingly and is binding on all persons.

             (8)  A copy of the scheme is to be published in the Gazette within 14 days after the formulation of the scheme.

             (9)  To avoid doubt, the scheme may be varied or revoked, in accordance with subsection 33(3) of the Acts Interpretation Act 1901, at any time before the fund‑transfer day.

           (10)  This section does not limit section 17, 18 or 19.

           (11)  In this section:

declaration means a declaration under section 17, 18 or 19.

Subdivision B—Transfers of assets, contracts and liabilities

17  Transfer of assets

             (1)  This section applies to an asset of the Commission.

             (2)  The Minister may, by writing, make any or all of the following declarations:

                     (a)  a declaration that a specified asset vests in the nominated company at a specified time without any conveyance, transfer or assignment;

                     (b)  a declaration that a specified instrument relating to a specified asset continues to have effect after the asset vests in the nominated company as if a reference in the instrument to the Commission were a reference to the nominated company;

                     (c)  a declaration that the nominated company becomes the Commission’s successor in law in relation to a specified asset immediately after the asset vests in the nominated company.

Note:          An asset or instrument may be specified by name, by inclusion in a specified class or in any other way.

             (3)  A declaration under subsection (2) has effect accordingly.

             (4)  A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.

             (5)  If a declaration under subsection (2) relates to an asset of the Medibank Private fund, the time specified under paragraph (2)(a) must be a time that occurs during the fund‑transfer day.

             (6)  Subsection (2) does not prevent the Commission from transferring an asset to the nominated company otherwise than under that subsection.

             (7)  If a share in a company (the first company) vests in the nominated company under this section, the first company must register the nominated company as the holder of the share.

             (8)  Subsection (7) has effect despite anything in the Corporations Act 2001.

18  Transfer of contractual rights and obligations

             (1)  This section applies to a contract (other than a contract of employment) to which the Commission is a party.

             (2)  The Minister may, by writing, declare that the Commission’s rights and obligations under a specified contract:

                     (a)  cease to be rights and obligations of the Commission at a specified time; and

                     (b)  become rights and obligations of the nominated company at that time.

             (3)  The Minister may, by writing, declare that a specified contract continues to have effect after a specified time as if a reference in the contract to the Commission were a reference to the nominated company.

             (4)  The Minister may, by writing, declare that a specified instrument relating to a specified contract continues to have effect, after the Commission’s rights and obligations under the contract become rights and obligations of the nominated company, as if a reference in the instrument to the Commission were a reference to the nominated company.

             (5)  The Minister may, by writing, declare that the nominated company becomes the Commission’s successor in law, in relation to the Commission’s rights and obligations under a specified contract, immediately after the Commission’s rights and obligations under the contract become rights and obligations of the nominated company.

             (6)  A declaration under this section has effect accordingly.

             (7)  A copy of a declaration under this section is to be published in the Gazette within 14 days after the making of the declaration.

             (8)  If a declaration under this section relates to any of the following contracts:

                     (a)  a contract under which contributions are made to the Medibank Private fund;

                     (b)  a contract under which a person agrees to supply goods or services to a contributor to the Medibank Private fund or to a dependant of such a contributor;

                     (c)  an applicable benefits arrangement (within the meaning of the National Health Act 1953);

                     (d)  a hospital purchaser‑provider agreement (within the meaning of the National Health Act 1953);

                     (e)  a medical purchaser‑provider agreement (within the meaning of the National Health Act 1953);

the time specified under subsection (2) or (3) must be a time that occurs during the fund‑transfer day.

             (9)  This section does not, by implication, limit section 17 or 19.

Note:          A contract or instrument may be specified by name, by inclusion in a specified class or in any other way.

           (10)  In paragraph (8)(b):

goods has the same meaning as in the Competition and Consumer Act 2010.

person includes a partnership.

services has the same meaning as in the Competition and Consumer Act 2010.

supply has the same meaning as in the Competition and Consumer Act 2010.

19  Transfer of liabilities

             (1)  This section applies to a liability of the Commission.

             (2)  The Minister may, by writing, make any or all of the following declarations:

                     (a)  a declaration that a specified liability ceases to be a liability of the Commission and becomes a liability of the nominated company at a specified time;

                     (b)  a declaration that a specified instrument relating to a specified liability continues to have effect after the liability becomes a liability of the nominated company as if a reference in the instrument to the Commission were a reference to the nominated company;

                     (c)  a declaration that the nominated company becomes the Commission’s successor in law in relation to a specified liability immediately after the liability becomes a liability of the nominated company.

             (3)  A declaration under subsection (2) has effect accordingly.

             (4)  A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.

             (5)  If a declaration under subsection (2) relates to a liability of the Medibank Private fund, the time specified under subsection (2) must be a time that occurs during the fund‑transfer day.

Note:          A liability or instrument may be specified by name, by inclusion in a specified class or in any other way.

20  Commission contracts may be split

             (1)  The object of this section is to enable a Commission contract to be split into 2 separate contracts so that one of those contracts can be transferred to the nominated company under this Division.

             (2)  For the purposes of this section, a Commission contract is a contract between the Commission and another person (the supplier) for the supply to the Commission of goods or services.

             (3)  The Minister may, by writing, declare that:

                     (a)  a specified Commission contract terminates at a specified time without giving the supplier any entitlement to compensation or damages (other than an entitlement (if any) under section 46); and

                     (b)  the Commission is taken to have entered into a contract (the Medibank Private contract) with the supplier at that time for the supply of some of those goods or services in the terms set out in the declaration; and

                     (c)  the Commission is taken to have entered into a contract (the residual contract) with the supplier at that time for the supply of some of those goods or services in the terms set out in the declaration.

             (4)  A declaration under subsection (3) has effect accordingly.

             (5)  A copy of a declaration under subsection (3) is to be published in the Gazette within 14 days after the making of the declaration.

             (6)  A copy of a declaration under subsection (3) is to be given to the supplier as soon as practicable after the making of the declaration.

             (7)  If a declaration is made under subsection (3) in relation to a Commission contract:

                     (a)  the sum of:

                              (i)  the consideration that is to be paid to the supplier under the Medibank Private contract; and

                             (ii)  the consideration that is to be paid to the supplier under the residual contract;

                            must equal the consideration that would have been paid to the supplier under the Commission contract if the declaration had not been made; and

                     (b)  the aggregate of:

                              (i)  the obligations imposed on the supplier under the Medibank Private contract; and

                             (ii)  the obligations imposed on the supplier under the residual contract;

                            must not be more onerous than the obligations that would have been imposed on the supplier under the Commission contract if the declaration had not been made.

             (8)  In this section:

goods has the same meaning as in the Competition and Consumer Act 2010.

person includes a partnership.

services has the same meaning as in the Competition and Consumer Act 2010.

supply has the same meaning as in the Competition and Consumer Act 2010.

             (9)  To avoid doubt, a reference in this section to services includes a reference to rights arising under a computer software licence.

           (10)  Subsection (9) is to be disregarded in interpreting a law of the Commonwealth (other than this section).

Subdivision C—Transfer of staff

21  Transfer of staff from the Commission

             (1)  This section applies to an employee of the Commission.

             (2)  The Minister may, by written instrument, declare that a specified employee:

                     (a)  ceases to be employed by the Commission at a specified time (the employee’s transfer time); and

                     (b)  is taken to have been engaged by the nominated company as an employee of the nominated company at the employee’s transfer time.

             (3)  A declaration under this section has effect accordingly.

             (4)  A time specified under subsection (2) must be a time that occurs:

                     (a)  when the nominated company is Commission‑owned; or

                     (b)  within 18 months after the nominated company ceases to be Commission‑owned.

             (5)  A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.

22  Terms and conditions—transferred employees

             (1)  A person who is a transferred employee is taken to have been engaged by the nominated company on the terms and conditions that applied to the person, immediately before the employee’s transfer time, as an employee of the Commission.

             (2)  A reference in subsection (1) to terms and conditions is a reference to terms and conditions that are set out in:

                     (a)  a determination under subsection 28(2) of the Health Insurance Commission Act 1973; or

                     (b)  an award (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or

                     (c)  a certified agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or

                     (d)  an Australian Workplace Agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or

                     (e)  an old IR agreement within the meaning given by Schedule 7 to the Workplace Agreement 1996.

23  Accrued benefits—transferred employees

                   A person who is a transferred employee is taken to have accrued an entitlement to benefits, in connection with the employee’s engagement by the nominated company, that is equivalent to the entitlement that the person had accrued, as an employee of the Commission, immediately before the employee’s transfer time.

24  Continuity of service of transferred employees

                   The service of a transferred employee as an employee of the nominated company is taken, for all purposes, to have been continuous with the service of the employee, immediately before the employee’s transfer time, as an employee of the Commission.

25  Termination payments—transferred employees

                   A transferred employee is not entitled to receive any payment or other benefit merely because he or she stopped being an employee of the Commission as a result of this Part.

26  Variation of terms and conditions—transferred employees

             (1)  This Part does not prevent the terms and conditions of a transferred employee’s employment after the employee’s transfer time from being varied:

                     (a)  in accordance with those terms and conditions; or

                     (b)  by or under a law, determination or industrial instrument.

             (2)  In this section:

industrial instrument means any of the following instruments within the meaning given by the Workplace Relations Act 1996:

                     (a)  a workplace agreement;

                     (b)  an award or a variation or order affecting an award;

                     (c)  a transitional award or a variation or order affecting a transitional award;

                     (d)  a pre‑reform AWA;

                     (e)  a pre‑reform certified agreement;

                      (f)  an AWA.

vary, in relation to terms and conditions, includes:

                     (a)  omitting any of those terms and conditions; or

                     (b)  adding to those terms and conditions; or

                     (c)  substituting new terms or conditions for any of those terms and conditions.

27  Mobility rights—transferred employees

                   For the purposes of the application of Part IV of the Public Service Act 1922 in relation to a transferred employee, the nominated company is taken to be, after the employee’s transfer time, a Commonwealth authority for the purposes of that Part.

28  Re‑transfer of staff from the nominated company

             (1)  This section applies to an employee of the nominated company if the employee was engaged by the company under section 21.

             (2)  The Minister may, by written instrument, declare that a specified employee:

                     (a)  ceases to be employed by the nominated company at a specified time (the employee’s re‑transfer time); and

                     (b)  is taken to have been engaged by the Commission as an employee of the Commission at the employee’s re‑transfer time.

             (3)  A declaration under this section has effect accordingly.

             (4)  A time specified under subsection (2) must be a time that occurs:

                     (a)  when the nominated company is Commission‑owned; or

                     (b)  within 18 months after the nominated company ceases to be Commission‑owned.

             (5)  A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.

29  Terms and conditions—re‑transferred employees

             (1)  A person who is a re‑transferred employee is to be engaged by the Commission on terms and conditions that are not less favourable than those that applied to the person, immediately before the employee’s re‑transfer time, as an employee of the nominated company.

             (2)  A reference in subsection (1) to terms and conditions is a reference to terms and conditions that are set out in:

                     (a)  a written contract of employment; or

                     (b)  a determination in force under subsection 28(2) of the Health Insurance Commission Act 1973 immediately before the employee’s transfer time, to the extent that the determination is relevant to the employee because of subsection 22(1); or

                     (c)  an award (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or

                     (d)  a certified agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or

                     (e)  an Australian Workplace Agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005).

30  Accrued benefits—re‑transferred employees

                   A person who is a re‑transferred employee is taken to have accrued an entitlement to benefits, in connection with the employee’s engagement by the Commission, that is equivalent to the entitlement that the person had accrued, as an employee of the nominated company, immediately before the employee’s re‑transfer time.

31  Continuity of service of re‑transferred employees

                   The service of a re‑transferred employee as an employee of the Commission is taken, for all purposes, to have been continuous with the service of the employee, immediately before the employee’s re‑transfer time, as an employee of the nominated company.

32  Termination payments—re‑transferred employees

                   A re‑transferred employee is not entitled to receive any payment or other benefit merely because he or she stopped being an employee of the nominated company as a result of this Part.

33  Variation of terms and conditions—re‑transferred employees

             (1)  This Part does not prevent the terms and conditions of a re‑transferred employee’s employment after the employee’s re‑transfer time from being varied:

                     (a)  in accordance with those terms and conditions; or

                     (b)  by or under a law, determination or industrial instrument.

             (2)  In this section:

industrial instrument means any of the following instruments within the meaning given by the Workplace Relations Act 1996:

                     (a)  a workplace agreement;

                     (b)  an award or a variation or order affecting an award;

                     (c)  a transitional award or a variation or order affecting a transitional award;

                     (d)  a pre‑reform AWA;

                     (e)  a pre‑reform certified agreement;

                      (f)  an AWA.

vary, in relation to terms and conditions, includes:

                     (a)  omitting any of those terms and conditions; or

                     (b)  adding to those terms and conditions; or

                     (c)  substituting new terms or conditions for any of those terms and conditions.

Division 5—Acquisition by the Commonwealth of shares in the nominated company

34  Acquisition by the Commonwealth of shares in the nominated company

             (1)  This section applies to shares in the nominated company that are legally and beneficially owned by the Commission.

             (2)  The Minister may, by writing, make any or all of the following declarations:

                     (a)  a declaration that the legal and beneficial interests in all of those shares vest in the Commonwealth at a specified time without any conveyance, transfer or assignment;

                     (b)  a declaration that a specified instrument relating to any or all of those shares continues to have effect after the legal and beneficial interests in those shares vest in the Commonwealth as if a reference in the instrument to the Commission were a reference to the Commonwealth;

                     (c)  a declaration that the Commonwealth becomes the Commission’s successor in law in relation to those shares immediately after the legal and beneficial interests in those shares vest in the Commonwealth.

             (3)  A declaration under subsection (2) has effect accordingly.

             (4)  A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.

             (5)  If the legal and beneficial interests in shares vest in the Commonwealth under this section, the nominated company must register the Commonwealth as the holder of the shares.

             (6)  Subsection (5) has effect despite anything in the Corporations Act 2001.

             (7)  To avoid doubt, this section does not prevent or limit the formulation, entering into, or carrying out, of a Medibank Private sale scheme.

             (8)  In this section:

Medibank Private sale scheme has the same meaning as in the Medibank Private Sale Act 2006.

Division 6—Exemption from stamp duty

36  Exemption from stamp duty

             (1)  In this section:

designated matter means:

                     (a)  a matter relating to the carrying out of a scheme formulated under section 16; or

                     (b)  a transfer under section 17, 18 or 19; or

                     (c)  an agreement relating to a transfer covered by paragraph (b); or

                     (d)  a matter arising under section 20; or

                     (e)  a transfer under section 34; or

                      (f)  an agreement relating to a transfer covered by paragraph (e).

             (2)  Stamp duty or other tax is not payable under a law of a State or Territory in respect of:

                     (a)  a designated matter; or

                     (b)  anything done (including a transaction entered into or an instrument or document made, executed, lodged or given) because of, or for a purpose connected with or arising out of, a designated matter.

Division 7—Miscellaneous

37  Transfers of land may be registered

             (1)  This section applies if:

                     (a)  any right, title or interest in particular land vests in the nominated company under section 17; and

                     (b)  there is lodged with a land registration official a certificate that:

                              (i)  is signed by the Minister; and

                             (ii)  identifies the land; and

                            (iii)  states that the right, title or interest has become vested in the nominated company under section 17.

             (2)  The land registration official may:

                     (a)  register the matter in a way that is the same as, or similar to, the way in which dealings in land of that kind are registered; and

                     (b)  deal with, and give effect to, the certificate.

             (3)  A document that appears to be a certificate under subsection (1) is to be taken to be such a certificate, and to have been properly given, unless the contrary is established.

38  This Part does not modify registers kept by land registration officials

                   This Part, in so far as it provides for the interpretation of references in other instruments, does not modify any register kept by a land registration official under a law of a State or Territory.

39  Application of Lands Acquisition Act

                   The Lands Acquisition Act 1989 does not apply in relation to anything done under this Part.

40  Instruments under this Part not legislative instruments

                   To avoid doubt, an instrument made under this Part (other than regulations under section 53) is not taken to be a legislative instrument for the purposes of the Legislation Act 2003.

41  Transfer of pending proceedings

             (1)  This section applies if, as a result of a declaration made by the Minister under this Part, a person (the successor) becomes the successor in law of another person (the original person) at a particular time in relation to a particular asset, liability, right, benefit or obligation.

             (2)  If any proceedings to which the original person was a party:

                     (a)  were pending in any court or tribunal immediately before that time; and

                     (b)  related, in whole or in part, to the asset, liability, right, benefit or obligation, as the case may be;

then, unless the Minister otherwise determines in writing in relation to the proceedings, the successor is, by force of this subsection, substituted for the original person as a party to the proceedings to the extent to which the proceedings relate to the asset, liability, right, benefit or obligation, as the case requires.

42  Operation of this Part does not place a person in breach of contract etc.

                   To avoid doubt, the operation of this Part is not to be regarded as:

                     (a)  placing a person in breach of contract or confidence; or

                     (b)  otherwise making a person guilty of a civil wrong; or

                     (c)  placing a person in breach of any contractual provision prohibiting, restricting or regulating:

                              (i)  the assignment or transfer of any asset, liability, right or obligation; or

                             (ii)  the disclosure of any information; or

                     (d)  releasing any surety from any of the surety’s obligations in relation to a liability or obligation that is transferred under this Part.

43  Transfer of records

             (1)  This section applies to a record of the Commission that relates to Medibank Private.

             (2)  The Minister may direct the Commission to transfer specified records to the nominated company.

Note:          A record may be specified by name, by inclusion in a specified class or in any other way.

             (3)  The Commission must ensure that the direction is complied with.

             (4)  In this section:

record has the same meaning as in the Archives Act 1983.

44  Nominated company not to be an agency of the Commonwealth etc.

             (1)  The nominated company is not taken, for the purposes of a law, to be:

                     (a)  a Commonwealth authority; or

                     (b)  established for a public purpose or for a purpose of the Commonwealth; or

                     (c)  a public authority or an agency or instrumentality of the Crown;

(within the ordinary meaning of the expression concerned) unless a law expressly provides otherwise.

             (2)  In this section:

law means:

                     (a)  an Act of the Commonwealth or of a State or Territory; or

                     (b)  regulations or any other instrument made under such an Act.

46  Compensation—constitutional safety‑net

             (1)  If:

                     (a)  apart from this section, the operation of this Part would result in the acquisition of property from a person otherwise than on just terms; and

                     (b)  the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;

the Commonwealth is liable to pay compensation of a reasonable amount to the person in respect of the acquisition.

             (2)  If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

             (3)  In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

47  Delegation

             (1)  The Minister may, by writing, delegate to the Chairperson of the Commission all or any of the functions or powers conferred on the Minister by this Part (other than Subdivision C of Division 4).

Note:          Subdivision C of Division 4 deals with transfer of staff.

             (2)  The Minister may, by writing, delegate to all or any of the following groups:

                     (a)  the Managing Director of the Commission and the Chief Executive Officer of the nominated company;

                     (b)  the Managing Director of the Commission and the Human Resources Manager of the nominated company;

                     (c)  the Chief Executive Officer of the nominated company and the Human Resources Manager of the Commission;

                     (d)  the Human Resources Manager of the Commission and the Human Resources Manager of the nominated company;

all or any of the functions and powers conferred on the Minister by Subdivision C of Division 4.

Note:          Subdivision C of Division 4 deals with transfer of staff.

             (3)  A function or power delegated to a group under subsection (2) may be performed or exercised by both members of the group acting jointly, and may not otherwise be performed or exercised under the delegation.

             (5)  In this section:

Chief Executive Officer, in relation to the nominated company, means the chief executive officer (however described) of the nominated company.

Human Resources Manager means:

                     (a)  in relation to the Commission—the Commission’s General Manager, Human Resource Management; and

                     (b)  in relation to the nominated company—the employee of the nominated company whose position corresponds to the Commission’s General Manager, Human Resource Management.

Managing Director, in relation to the Commission, has the same meaning as in the Health Insurance Commission Act 1973.

Senior Executive Service office has the same meaning as in the Public Service Act 1922.

48  Commonwealth records

             (1)  This Part does not authorise a Commonwealth record (within the meaning of the Archives Act 1983) to be transferred or otherwise dealt with except in accordance with the provisions of that Act.

             (2)  A Commonwealth record (within the meaning of the Archives Act 1983) must not be transferred to a person under this Part unless the Australian Archives has given permission under paragraph 24(2)(b) of the Archives Act 1983.

             (3)  If the nominated company is Commission‑owned, the Archives Act 1983 has effect as if the nominated company were a Commonwealth‑controlled company (within the meaning of that Act).

49  Complaints and investigations under the Ombudsman Act 1976

             (1)  This section applies to:

                     (a)  a complaint if:

                              (i)  the complaint could have been made to the Ombudsman under the Ombudsman Act 1976 before the fund‑transfer day in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and

                             (ii)  the complaint is made on or after the fund‑transfer day;

                     (b)  a complaint if:

                              (i)  before the fund‑transfer day, the complaint was made to the Ombudsman under the Ombudsman Act 1976 in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and

                             (ii)  immediately before the fund‑transfer day, the Ombudsman had not finally disposed of the matter in accordance with that Act; or

                     (c)  an investigation if:

                              (i)  before the fund‑transfer day, the Ombudsman commenced the investigation under the Ombudsman Act 1976 in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and

                             (ii)  immediately before the fund‑transfer day, the Ombudsman had not finally disposed of the matter in accordance with that Act.

             (2)  The Ombudsman Act 1976 has effect on and after the fund‑transfer day, in relation to the complaint or investigation, as if:

                     (a)  the action taken by the Commission had been taken by the nominated company; and

                     (b)  the nominated company were a prescribed authority (within the meaning of that Act); and

                     (c)  the nominated company had been in existence at the time when the action occurred.

50  Requests under the Freedom of Information Act 1982

             (1)  If:

                     (a)  before the fund‑transfer day, a request was made under the Freedom of Information Act 1982 for access to a document in the possession of the Commission; and

                     (b)  the document has been transferred to the nominated company under this Part; and

                     (c)  the request had not been finally disposed of under the Freedom of Information Act 1982 immediately before the fund‑transfer day;

then:

                     (d)  the request is taken to have been transferred to the nominated company on the fund‑transfer day; and

                     (e)  the Freedom of Information Act 1982 has effect on and after the fund‑transfer day, in relation to the request, as if the nominated company were an agency (within the meaning of that Act).

             (2)  If:

                     (a)  immediately before the fund‑transfer day, a person had a right to:

                              (i)  apply under the Administrative Appeals Tribunal Act 1975 (the AAT Act) for a review of a decision of the Commission made under the Freedom of Information Act 1982 in relation to a particular document, where possession of the document has been transferred from the Commission to the nominated company under this Part; or

                             (ii)  request under the AAT Act a statement of reasons for such a decision; or

                     (b)  before the fund‑transfer day, a person made such an application or request but it had not been finally disposed of under the AAT Act before the fund‑transfer day;

the AAT Act has effect on and after the fund‑transfer day, in relation to the right, application or request as if:

                     (c)  the decision made by the Commission had been made by the nominated company; and

                     (d)  the nominated company had been in existence at all relevant times; and

                     (e)  the nominated company were substituted for the Commission as a party to any relevant proceedings arising under that Act.

51  Complaints and investigations under the Privacy Act 1988

             (1)  This section applies to:

                     (a)  a complaint if:

                              (i)  the complaint could have been made to the Privacy Commissioner under the Privacy Act 1988 before the fund‑transfer day in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and

                             (ii)  the complaint is made on or after the fund‑transfer day; or

                     (b)  a complaint if:

                              (i)  before the fund‑transfer day, the complaint was made to the Privacy Commissioner under the Privacy Act 1988 in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and

                             (ii)  immediately before the fund‑transfer day, the Privacy Commissioner had not finally disposed of the matter in accordance with that Act; or

                     (c)  an investigation if:

                              (i)  before the fund‑transfer day, the Privacy Commissioner commenced the investigation under the Privacy Act 1988 in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and

                             (ii)  immediately before the fund‑transfer day, the Privacy Commissioner had not finally disposed of the matter in accordance with that Act.

             (2)  The Privacy Act 1988 has effect on and after the fund‑transfer day, in relation to the complaint or investigation, as if:

                     (a)  the act or practice of the Commission had been an act or practice of the nominated company; and

                     (b)  the nominated company were an agency (within the meaning of that Act); and

                     (c)  the nominated company had been in existence at the time when the act or practice occurred.

52  This Part does not authorise the imposition of taxation

                   This Part does not authorise the imposition of taxation within the meaning of section 55 of the Constitution.

53  Regulations

                   The Governor‑General may make regulations prescribing matters:

                     (a)  required or permitted by this Part to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Part.

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

 

Endnote 2—Abbreviation key

 

ad = added or inserted	o = order(s)
am = amended	Ord = Ordinance
amdt = amendment	orig = original
c = clause(s)	par = paragraph(s)/subparagraph(s)
C[x] = Compilation No. x	/sub‑subparagraph(s)
Ch = Chapter(s)	pres = present
def = definition(s)	prev = previous
Dict = Dictionary	(prev…) = previously
disallowed = disallowed by Parliament	Pt = Part(s)
Div = Division(s)	r = regulation(s)/rule(s)
ed = editorial change	reloc = relocated
exp = expires/expired or ceases/ceased to have	renum = renumbered
effect	rep = repealed
F = Federal Register of Legislation	rs = repealed and substituted
gaz = gazette	s = section(s)/subsection(s)
LA = Legislation Act 2003	Sch = Schedule(s)
LIA = Legislative Instruments Act 2003	Sdiv = Subdivision(s)
(md) = misdescribed amendment can be given	SLI = Select Legislative Instrument
effect	SR = Statutory Rules
(md not incorp) = misdescribed amendment	Sub‑Ch = Sub‑Chapter(s)
cannot be given effect	SubPt = Subpart(s)
mod = modified/modification	underlining = whole or part not
No. = Number(s)	commenced or to be commenced

 

Endnote 3—Legislation history

 

Act	Number and year	Assent	Commencement	Application, saving and transitional provisions
Health Insurance Commission (Reform and Separation of Functions) Act 1997	159, 1997	11 Nov 1997	Sch 1 (items 38–42, 45–50, 52–69, 71–80): 1 Mar 1998 (s 2(2) and gaz 1998, No GN9) Sch 1 (items 43, 44, 51, 70): 1 Jan 1988 (s 2(3)) Sch 1 (item 81): 10 Nov 2002 (s 2(4)) Remainder: 11 Nov 1997 (s 2(1))
Corporations (Repeals, Consequentials and Transitionals) Act 2001	55, 2001	28 June 2001	s 4–14 and Sch 3 (items 210–215): 15 July 2001 (s 2(1), (3) and gaz 2001, No S285)	s 4–14
Medibank Private Sale Act 2006	160, 2006	11 Dec 2006	Sch 1 (items 1–3): 12 Dec 2006 (s 2(1) item 2) Sch 3 (item 3): 1 Dec 2014 (s 2(1) item 3 and F2014L01631)	—
Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008	8, 2008	20 Mar 2008	Sch 1 (items 269, 270): 28 Mar 2008 (s 2(1) item 2 and F2008L00959)	—
Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010	103, 2010	13 July 2010	Sch 6 (items 1, 62–67): 1 Jan 2011 (s 2(1) items 3, 5)	—
Statute Law Revision Act 2011	5, 2011	22 Mar 2011	Sch 7 (item 70): 19 Apr 2011 (s 2(1) item 18)	—
Statute Law Revision Act (No. 1) 2014	31, 2014	27 May 2014	Sch 9 (items 3, 4): 24 June 2014 (s 2(1) item 9)	—
Public Governance, Performance and Accountability (Consequential and Transitional Provisions) Act 2014	62, 2014	30 June 2014	Sch 9 (item 158) and Sch 14: 1 July 2014 (s 2(1) items 6, 14)	Sch 14
as amended by
Public Governance and Resources Legislation Amendment Act (No. 1) 2015	36, 2015	13 Apr 2015	Sch 2 (items 7–9) and Sch 7: 14 Apr 2015 (s 2)	Sch 7
as amended by
Acts and Instruments (Framework Reform) (Consequential Provisions) Act 2015	126, 2015	10 Sept 2015	Sch 1 (item 486): 5 Mar 2016 (s 2(1) item 2)	—
Acts and Instruments (Framework Reform) (Consequential Provisions) Act 2015	126, 2015	10 Sept 2015	Sch 1 (item 495): 5 Mar 2016 (s 2(1) item 2)	—
Acts and Instruments (Framework Reform) Act 2015	10, 2015	5 Mar 2015	Sch 1 (items 147, 148, items 166–179): 5 Mar 2016 (s 2(1) item 2)	Sch 1 (items 166–179)
as amended by
Acts and Instruments (Framework Reform) (Consequential Provisions) Act 2015	126, 2015	10 Sept 2015	Sch 3 (items 1, 6): 5 Mar 2016 (s 2(1) item 8)	Sch 1 (item 6)
Territories Legislation Amendment Act 2016	33, 2016	23 Mar 2016	Sch 5 (item 60): 1 July 2016 (s 2(1) item 7)	—
Public Governance and Resources Legislation Amendment Act (No. 1) 2017	92, 2017	23 Aug 2017	Sch 3 (items 1–4) and Sch 4: 23 Aug 2017 (s 2(1) item 1)	Sch 4

 

Name	Registration	Commencement	Application, saving and transitional provisions
Workplace Relations Amendment (Work Choices) (Consequential Amendments) Regulations 2006 (No. 1) (SLI No. 50, 2006)	17 Mar 2006 (F2006L00820)	Sch 43: 27 Mar 2006 (r 2(b))	—

Endnote 4—Amendment history

 

Provision affected	How affected
Part 2
Division 1
s 3........................................	am No 160, 2006
s 4........................................	am No 55, 2001
s 5........................................	am No 55, 2001
s 8........................................	am No 33, 2016
Division 2
s 13......................................	am No 62, 2014
Division 4
Subdivision B
s 17......................................	am No 55, 2001
s 18......................................	am No 103, 2010
s 20......................................	am No 103, 2010
Subdivision C
s 22......................................	am SLI 2006 No 50
s 26......................................	am SLI 2006 No 50; No 8, 2008
s 29......................................	am SLI 2006 No 50
s 33......................................	am SLI 2006 No 50; No 8, 2008
Division 5
s 34......................................	am No 55, 2001; No 160, 2006
s 35......................................	rep No 160, 2006
Division 7
s 40......................................	am No 10, 2015
s 45......................................	am No 55, 2001
	rep No 160, 2006
s 47......................................	am No 55, 2001; No 5, 2011; No 92, 2017
Part 3...................................	rep No 31, 2014
s 54......................................	rep No 31, 2014
Schedule 1...........................	rep No 31, 2014
Schedule 2...........................	rep No 31, 2014